ACTION MEMORANDUM

S/ES

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TO: The Secretary

FROM: CA - Maura Harty

L - William H. Taft, IV

SUBJECT: State-Homeland Security Memorandum of

Understanding Relating to the Visa Function

ISSUE FOR DECISION

Whether to approve the concept paper at Tab 1 as the

basis for initial discussions with the Department of
Homeland Security on a Memorandum of Understanding
concerning visa operations.

BACKGROUND

Section 428 of the Homeland Security Act (HSA) gives

authority over visa adjudications by consular officers to
the Secretary of Homeland Security (SecHS) while leaving
other visa-related authorities to you. The SecHS may
direct a consular officer to refuse a visa, but may not
direct a consular officer to issue a visa. The Act also
authorizes the SecHS to delegate his responsibilities for
the visa function to you, in whole or in part, and requires
that directions from the Department of Homeland Security
(DHS) to consular officers go "through" you.

Section 428 contemplates that there will be a

Memorandum of Understanding (MOU) between the DHS and State
addressing how the responsibilities of each agency will be
exercised. The MOU should be the vehicle for any
delegations of DHS authority back to State.

We believe the effective date of Section 428 is either

the date on which a notice that the MOU has been completed
and submitted to Congress is published in the Federal
Register, or November 25, 2003, whichever is earlier. Our

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initial contacts with the DHS transition team, however,
indicate they believe the effective date is January 24, and
Asa Hutchinson, DHS Under Secretary for Border and
Transportation Security-designate, has asked that we agree
to a "framework MOU" by that date. We want to complete the
MOU as soon as possible, but think that a more reasonable
target would be March 1, when INS will be folded into DHS.
We will seek to resolve this issue with U/S-designate
Hutchinson in the next few days.

In any event, we need to agree with the DHS transition

team on general principles before we can begin drafting an
MOU productively. We would like to provide the DHS
transition team with the concept paper at Tab 1. It has
the following key elements:

• It recognizes that the primary purpose of Section 428 is

to promote a unified policy concerning the admission of
aliens to the United States by ensuring that the
Secretary of Homeland Security, who will control the
domestic immigration function, also has authority over
consular visa decisions.
• It recognizes that SecHS may exercise full authority over
visa decisions committed by law to consular officers
(except that the SecHS does not have the right to direct
a consular officer to issue a visa), but proposes that
the exercise of such authority generally be delegated
back to State where homeland security issues are not
involved.
• It proposes that DHS delegate to State responsibility for
all case-specific visa advice, in both security and non-
security cases, on the understanding that security cases
which an agency recommends visa denial but State believes
the evidence of ineligibility is legally insufficient
will be referred to DHS for decision. (You should note
that this approach will give State responsibility for
authorizing issuance in cases where there is no other
agency objection. An alternative would be to have DHS
authorize all security cases, but this would make visa
operations significantly less efficient.)
• It proposes that all existing State regulations and other
guidance concerning consular visa decisions remain in
effect until changed by or in consultation with DHS.
• It assumes that the Visa Office will remain intact to
support both DHS and State visa functions.

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• It assumes that DHS overseas staffing to monitor visa
operations will be assessed within the framework of Chief
of Mission authority; that DHS will bear all costs of
such staffing and of any DHS training of consular
officers; and that DHS input into the evaluation of
consular officers will occur in accordance with existing
procedures for non-supervisory input into Foreign Service
evaluations.
• It does not attempt to address the potential overlap
between DHS's new responsibilities for investigating visa
operations and the role of DS in investigating visa
fraud. We have raised this matter with DHS and will need
to take care of it soon, most probably via a separate
MOU.

The HSA as enacted differs substantially from the

President's proposal and leaves many questions unanswered,
including the delineation of responsibility between you and
the SecHS. We intend to use as a defining principle the
specific language of the HSA which gives the SecHS
authority "to issue regulations with respect to,
administer, and enforce the provisions of ... all . . .
immigration and nationality laws, relating to the functions
of consular officers . . . in connection with the granting
or refusal of visas." Thus, where a specific statutory
authority is vested in consular officers we will assume
that DHS assumes responsibility for its supervision but can
delegate such responsibility back to State. We will
generally also assume, however, that any visa-related
authority vested specifically in you by statute is retained
by you. We are not certain whether the DHS transition team
will agree with this analysis. It is, however, an approach
that we can readily defend and ground in the statutory
language. Any other approach would involve making judgment
calls without a clear guiding principle about whether you
or the Secretary of Homeland Security should exercise
functions now vested in you by statute, rather than in
consular officers.

RECOMMENDATION

That you approve our initiating discussions on the MOU

along the lines outlined above and in the concept paper
attached at Tab 1.

Approve: Disapprove:

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Attachment:
Concept Paper for MOU

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Drafted:
L/CA:
Catherine W. Brown 647-0688
Mary McLeod, 808-529-6577
1/5/03

clear:
D/HS: T McNamara OK
M: E Rooney OK
L: J Thessin OK
L/LM: J Borek OK
L/EMP: J Kim OK
CA/VO: J Jacobs OK
CA/VO: C Barry OK
CA/VO/L: S Fischel OK
DGP: R Whiteside OK
FSI: K Peterson OK
DS:F Taylor OK
H:J Kelly ok

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